Guns and Self-Defense, Part 2

Dave Killion — September 21, 2010

The last time I wrote on this subject, I had meant to make the point that people are allowed to use their firearms for self-defense. What I hadn’t really twigged to was that the intended victim hadn’t been using her own firearm. I woke up to that when I read this article. In this case, as in the last, it appears the target used the aggressor’s weapon against the aggressor himself.

If the bad guy had been successful, we would have heard a lot more about this case, but since this was apparently a matter of self-defense, there were no more articles about it. So ‘bad guy uses gun in bad way’ = lots of media, while ‘target uses gun in self-defense’ = not so much media. And if someone averts an attack simply by showing a firearm, it’s likely to go entirely unreported. It is no wonder so many Canadians have a distorted view about firearms.

So the point that I want to make is not just that the government will let you use your firearm for self-defense, but that the government will let you use ANY firearm for self-defense. Of course, you can’t prepare yourself in advance, and carry a handgun with you. No sir. You just have to wait until you are under attack and hope you can get hold of one.

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Article 26 of the Canadian Charter of Rights and Freedoms reads as follows:

“The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.”

To determine what those rights might be, we note that the preamble to the British North America Act (now called the Constitution Act of 1867) begins with the following sentence:

“Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom.”

Therefore, English Common Law, as it existed in 1867, forms the basis of Canadian Law. And one of the foundational instruments of English Common Law is the Bill of Rights of 1689, in which it was declared,

“That the subjects which are Protestants, may have arms for their defence suitable to their conditions, and as allowed by law.”

By this was meant that it was not only Catholics who had that right, but Protestants also. In other words, the intent was to declare that it is the right of all people, without exception, to have arms for their defence. To prove this, we must look to the preamble of the bill, where we find:

“Whereas the late King James the Second … did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this Kingdom.”

The historical context is that the Catholic, James II, had just been forced to abdicate the throne due to these abuses, and the ascension of William III to the throne was conditional upon giving royal assent to this bill. Which he did.

Unfortunately, the qualifying verbiage, “suitable to their conditions, and as allowed by law,” appears to leave a fair amount of latitude for later legalistic infringements of the right.

However, since the whole purpose for people to have arms is expressly set out to be “for their defence,” we must construe “suitable to their conditions” to mean that the arms in question must at least be sufficient for this purpose.

In today’s context, this can only mean firearms of comparable effectiveness to those accessible to criminals. At minimum. This is even more obviously true because the police bear no legal responsibility to defend any particular individual; only to keep the peace in a general sense.

Further, the authority of a legislature to regulate a right does not extinguish that right. Indeed, the Canadian Charter of Rights and Freedoms itself places strict limitations on the degree to which the enemies of freedom can push meaning of the phrase, “as allowed by law.” Article 1 reads:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Therefore the onus is on the government of Canada to prove that the Firearms Act does not overstep these bounds. But this has never happened. The restrictions imposed by the Firearms Act have never been shown to be “reasonable limits” in the sense of being “demonstrably justified in a free and democratic society.”

Quite the contrary. All available evidence shows unequivocally that such gun control laws cannot be rationally justified by any stretch of the imagination and are, in fact, demonstrably detrimental to a free and democratic society.

From all this, two conclusions are immediate and palpably obvious:

1. Canadians have an inalienable right to have and use whatever arms they require for their defence.

2. The Firearms Act violates the Canadian Charter of Rights and Freedoms and is therefore utterly void and without force.

— September 22, 2010

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